Minnesota: Hockey players in sex tape case may be tried together

MOORHEAD, Minn. -- The lawyer for one of two junior hockey players accused of distributing a sex video they made with a 15-year-old girl said prosecutors may try the men together.

Brandon Nicholas Smith, 19, of Castaic, Calif., made his first appearance Tuesday in Clay County District Court, where he faces felony charges of using a minor in a sexual performance and possession and distribution of child pornography.

Court documents allege that Smith, along with fellow Lincoln Stars hockey player Thomas Ryan Carey, 19, of Moorhead, taped Carey having sex with a 15-year-old girl in their Moorhead hotel room after a game the Stars played in Fargo against the Fargo Force on Feb. 14.

Smith was released on his own recognizance after his appearance Tuesday.

Brandon Nicholas Smith

His release terms prohibit him from having contact with the 15-year-old.

The girl reported the incident to her mother later in February after receiving messages about the video from members of her peer group, as well as from other hockey players, according to the court complaints against the players.

The alleged victim told Moorhead police she had contacted both men and told them to send her the images and delete them from their cellphones. She allegedly told a detective she believed Smith was the person who created the video.

A detective who searched the girl's phone found a screen shot of her and Carey, as well as another sexually explicit image of her with a male body part.

Both men told investigators the girl consented to being taped with Carey, according to court documents.

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Minnesota law says neither consent, nor a mistaken impression of the victim's age, are considered defenses against the crime of using a minor in a sexual performance.

Smith's attorney, Joseph Friedberg, said Tuesday that his client hoped to avoid trial on the charges, which he called "a horrendous misuse of prosecutorial discretion."

"The statute was designed for people who have pictures of sex with little children, something most of us can't look at and sleep," Friedberg said.

The attorney for Carey also has said he believes the charges are a misuse of the statute, and that his client will fight the charges.

Friedberg said he didn't consider the 15-year-old in this case to be a child.

"Not this 15-year-old," he said.

The Lincoln Stars said in a statement that both players were suspended during the investigation of the case and that their suspension continued. Their status in the U.S. Hockey League will be determined once the legal process has concluded, the statement says.